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Duty to Enforce

The association has an affirmative duty to enforce its declaration of covenants, conditions and restrictions.

Associations must enforce provisions in their operative documents. Failure of the association to reasonably enforce the operative documents may expose the association to liability. An association may be held liable for damage resulting from failure to reasonably enforce the documents. For example, if a situation arises and an association refuses to correct the problem, or unreasonably delays enforcement of the rules, after a homeowner have notify the association in writing, an association may be responsible for damage caused due to the failure to enforce the documents. The association must use reasonable methods to enforce provisions in the documents and do so in a reasonable time after demand has been made. However the association does not need to use the method demanded by the homeowner.

The association should take reasonable steps upon demand of a member to cure a violation, but the association is not required to seek out violations. However, the association must only act if there is a legitimate violation. A member cannot harass another member by demanding the association to correct illusory violations. Upon demand, the association should make a reasonable investigation as to the validity of the demand.

Board members have an official duty to enforce the operative documents and failure to do so exposes the association to liability and could expose board members to personal liability. Board members still are provided with immunity from personal liability unless their actions are willful and wanton. A board member who intentionally refuses to enforce the operative documents to spite a member may be held personally liable for resulting damage.

Boards are advised to enforce their operative documents in a reasonable manner. Failure to do so could expose the association to liability.

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